Both houses of Congress are preparing to take up nearly identical bipartisan bills, both dubbed the Free Flow of Information Act of 2005, which would bar the government from forcing a reporter to reveal a source unless the source's identity was "necessary to prevent imminent and actual harm to national security," according to the text of the bills. Originally introduced in February, the bills were presented again in revised form earlier this week.
The Senate shield law bill and the House version cover those entities that publish newspapers, books, magazines and periodicals "in print or electronic form" and their broadcast and wire-service counterparts. But Wednesday's hearing--just a small fraction of which addressed the issue of blogging--demonstrated that the .
"The fact is that there are new and different types of people reporting and making information available to anyone around the world," Sen. John Cornyn, R-Texas, said at the two-and-a-half hour hearing.
"Would you extend this privilege to a blogger?" he asked a six-member panel composed of journalists and First Amendment lawyers.
"I don't think journalism should profess to be a profession," said longtime New York Times political columnist William Safire. "I think the lonely pamphleteer has the same rights as The New York Times."
He and Floyd Abrams, a First Amendment lawyer who represented the now-jailed New York Times reporter Judith Miller, agreed that officials should establish a functional test, though they acknowledged it could be a difficult line to draw. The government might consider how regularly a person publishes material and whether that person is "in the business of gathering news," Safire suggested.
More than anything else, it's about creating a bond of trust that encourages sources to share their information, said Geoffrey Stone, a University of Chicago law professor specializing in the First Amendment. Even confidential attorney-client relationships, he added, tend to be based more on the client's trust than the attorney's qualifications.
"The definition of journalist really need not be focused on credentials so much as, what is the reasonable belief of the source?" Stone said.
Members of Congress who support the legislation say that compelling reporters to reveal their sources without extraordinary circumstances is contrary to the public interest. Said Sen. Richard Lugar, R-Ind., who introduced the Senate bill: "I fear the end result is that many whistleblowers will refuse to come forward and reporters will be unable to provide our constituents with information they have a right to know."
The blogger issue, Cornyn said, is "something we need to explore a little further," noting that some bloggers publish anonymously, and "anonymity has the risk of creating irresponsibility."
In the past year, more than two dozen reporters have been subpoenaed or questioned about confidential sources, and nine have been handed or threatened with jail sentences, said a Senate press release. Meanwhile, 31 states and the District of Columbia have their own versions of shield laws, and 34 state attorneys general submitted briefs to the Supreme Court that essentially argued for a federal version of the rules.
Miller recently went to jail for refusing to reveal confidential sources to a grand jury investigating the illegal leak of a CIA agent's identity. Matthew Cooper, a Time magazine reporter who also testified at Wednesday's hearings, escaped jail time in the same case by agreeing to testify before the grand jury about his source.
"I don't have strong feelings about which statute makes the most sense and how the privilege should be defined," Cooper told the Senate committee. "But I do want to talk about how the rules of the road are, to put it mildly, quite confusing for a working journalist such as myself in the absence of any clear federal standard."